I wanted to make two points about Spencer’s important story at the Windy, identifying a previously unknown 2007 Bradbury torture memo.

A former senior intelligence official, who would not speak for the record, said that in 2007, the head of the Justice Department’s Office of Legal Counsel, Steven Bradbury, issued a still-secret memorandum authorizing an updated CIA interrogation regimen. The Justice Department issued the document after months of internal Bush administration debate, a Supreme Court decision in 2006 that extended protections from Common Article 3 of the Geneva Conventions to enemy combatants in U.S. custody, a piece of new legislation responding to the Court’s decision and a presidential executive order on interrogations.

[snip]

The still-unreleased Office of Legal Counsel memo spelled out for the CIA what interrogation practices were considered lawful after President Bush issued an executive order on July 20, 2007 that sought to reconcile the CIA’s interrogation program with the Geneva Conventions’ Common Article 3, which prohibits inflicting “outrages upon personal dignity, in particular humiliating and degrading treatment” upon wartime detainees.” The Supreme Court, in 2006’s Hamdan v. Rumsfeld decision, ruled that Common Article 3 protections applied to enemy combatants in U.S. custody, a determination that the Bush administration had resisted since creating its post-9/11 detention and interrogation policies. Congress in 2006 responded by passing the Military Commissions Act, which reserved for the president the right to define the applicability of Common Article 3 protections for detainees in the war on terrorism. Bush’s order, known as Executive Order 13440, determined that the the CIA’s interrogation program fit within Common Article 3, provided that it met certain criteria, such as the exclusion of practices like “murder, torture, cruel or inhuman treatment, mutilation or maiming.”

But the order did not define which interrogation techniques it now considered legal. Anonymous Bush administration officials told reporters on the day of the order’s release, “it would be very wrong to assume that the program of the past would move into the future unchanged.” As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program. [my emphasis]

Note the timing. Spencer understands that Bush wrote his Executive Order, and then CIA got a new OLC memo (though Spencer reminds me that he doesn’t have the memo in hand to confirm that).

I find that particularly interesting considering our discussion the other day about the 2003 OLC memo CIA got. As the WaPo reported last year, the CIA under Tenet twice pushed the White House to give it memos saying, “the torture program is formal policy, not just CIA going wacko.”

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

The classified memos, which have not been previously disclosed, were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency’s interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing.

[snip]

Tenet first pressed the White House for written approval in June 2003, during a meeting with members of the National Security Council, including Rice, the officials said. Days later, he got what he wanted: a brief memo conveying the administration’s approval for the CIA’s interrogation methods, the officials said.

Administration officials confirmed the existence of the memos, but neither they nor former intelligence officers would describe their contents in detail because they remain classified. The sources all spoke on the condition of anonymity because they were not cleared to discuss the events.

The second request from Tenet, in June 2004, reflected growing worries among agency officials who had just witnessed the public outcry over the Abu Ghraib scandal. Officials who held senior posts at the time also spoke of deteriorating relations between the CIA and the White House over the war in Iraq — a rift that prompted some to believe that the agency needed even more explicit proof of the administration’s support.

You’ll note an undoubtedly related sign of anxieties over the difference between legal opinion and policy on the 2005 Bradbury torture memos, which all say in a footnote, “The legal advice provided in this memorandum does not represent the policy views of the Department of Justice concerning the use of any interrogation methods.” Though Bradbury may have had to include those footnotes since then Deputy Attorney General Jim Comey objected to the memos.

Now, the chronology Spencer describes is the reverse of what appears to have happened with the 2003 and 2004 policy memos: Bush made a formal statement of policy, the executive order, and only then, at the urging of CIA, got an OLC memo analyzing that policy to certify its legality. But it seems to reflect a similar tension between CIA and the White House over ensuring the White House remained as exposed by the torture policy as did CIA.

Note, too, top CIA officers surely already knew what we only discovered later that year: that Bush had a different OLC memo telling him he could change the meaning of Executive Orders willy nilly without changing the actual text of the order. (In fact, since the one prior known example of Executive Order pixie dust related to Iran-Contra, in the aftermath of which John Rizzo, then fairly early in his career in the Office of General Counsel at CIA, was deeply involved, the possibility that Bush’s EO on torture was just more pixie dust had to have been in the mind of lawyers at the CIA.) So it’s no surprise that CIA insisted on getting legal cover in addition to the apparent statement of policy represented by the EO.

And one more interesting timing note: All this was happening in the months (presumably) before Steven Bradbury’s long-simmering nomination to head OLC came back up before the Senate Judiciary Committee in October. And at the time Bradbury wrote the memo, he had already been serving as Acting Head of OLC for more than 210 days after his second nomination was rejected, making his service in that role arguably illegal (though GAO later ruled it was not illegal).

In June 2005, Mr. Bradbury was nominated by the President to be the Assistant Attorney General for OLC. His nomination was returned by the Senate in December 2005. He was nominated for a second time in January 2006 and returned by the Senate in September 2006. He was nominated for a third time in November 2006 and returned by the Senate the following month. He was nominated for a fourth time in January 2007 and returned by the Senate at the end of that year. And he was nominated for a fifth time in January 2008; his nomination is pending.

Mr. Bradbury was appointed to be the Acting Assistant Attorney General of OLC in or about June 2005. The Vacancies Reform Act permits an official to serve in an acting capacity throughout the pendency of a first or second nomination, but “for no more than 210 days after the second nomination is rejected, withdrawn, or returned.” 5 U.S.C. 3346(b). Mr. Bradbury’s second nomination was returned on September 29, 2006, so his 210-day stint as Acting Assistant Attorney General expired on or about April 26, 2007.

Since that time, Mr. Bradbury has continued to perform the same duties and functions he had previously been performing – albeit with a different title: “Principal Deputy Assistant Attorney General.” This appears to be an end run around and violation of the Vacancies Reform Act, which does not permit an official to continue leading an office after the 210-day period has expired.

Mr. Bradbury has done exactly that. Just because the Justice Department has changed Mr. Bradbury’s business cards and letterhead to say “Principal Deputy Assistant Attorney General” rather than “Acting Assistant Attorney General” does not change the fact that he has continued to serve as the top official at OLC long after the Vacancies Reform Act required his departure in April 2007.

The CIA, not surprisingly, wanted continued cover for its role in interrogations. But their claim to have it, either through EO or OLC Memo, may have given them only questionable legal cover.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Unfortunately their claim that Congress, via the MCA took away what the Sup Ct gave in Hamdan may not be all that wrong since the Dems in Congress specifically addressed that opinion by saying ‘hell no we didn’t mean for the UCMJ to incorporate the Geneva Conventions in a way that meant all detainees are covered by common article three, by damn if the President wants to exclude people from coverage, that’s what we are here to facilitate!

That Harry Reid – such a great guy.

Whatever. What I thought was interesting was the Ratner question of who they were still wanting to torture in 2007.

[btw, I’m not sure why Congress opted to send this to GAO rather than a real court and of course, God forbid that Pelosians would have ever just impeached his butt out of there]

Mary, this is about KSM’s children. You know much more than I about all that, and I’m sure you have read about the children’s being denied food and water those first days of their captivity. I found this a few days ago about the effects of deprivation of water: If link does not work, google: Operation Monarch [warning, it’s almost unbearable to read]

Water deprivation may be necessary to swell the brain by raising the temperature, making memory of experienced events difficult or impossible to recall by the victim…combine with 3 to 10 seconds – f120,000 volts to leg or back. Vomiting and flu-like symptoms will occur but memory is now hidden behind a wall of ‘black lightning’.

Can somebody tell me what the feeling is within the CIA’s people about the Valerie Plame Wilson Affair? Do they generally agree that Cheney/Libby/Bush/? outed VPW and that that was a bad thing, or do they think that it was a non-issue, that she was not covert and thus not eligible for protection or confidentiality?

The interrogators, medical personnel, but I haven’t seen any mention of the CIA translators yet.

Thinking out loud…it looks like there’s a room full of people watching horrific events unfold in front of their eyes. Out of those present, how many said, ”Count me out. I’m not participating in this.” I’m not excusing what took place…but what if it turned out there are 150 CIA personnel out there who all said ”No.” What would that say about the program and what CIA personnel really felt about it? What if it turned out that the CIA resisted this program much more than has appeared so far and the Bush administration persisted with it anyway?

Obama told the White House press Tuesday that the four recent Bush administration memos authorizing harsh interrogations released “reflected, in my view, us losing our moral bearings,” and that while CIA employees who followed the guidelines should not be prosecuted, but that “with respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws and I don’t want to prejudge that.”

sorry for double-posting what you already wrote. I think we agree it is a huge opening for DOJ to do its duty to enforce the law and prosecute war crimes. (Not getting the popcorn ready just yet . . . .)

So Zelikow says they destroyed his memo copies (and why didn’t anyone else within DOJ sign out an objection if they objected – the way Mora did at Pentagon?) Since he was Rice’s lawyer that is going to make it harder for her to pretend good faith. I still wish there was more info on that criminal investigation she supposedly ordered.

What continues to amaze me, is that any attorney, even those of Regent U. training, let alone any thinking semi-intelligent person, would believe any mountain of legal opinions would legally cover their ass for enhanced interrogation. Is there a vaccine or DNA modification for group think?

Looks like there’s another one that nobody’s noticed. In the Vaughn index that the CIA produced to the ACLU, et. al., Document 70 is described thusly:

This document is a 14-page legal opinion from DOJ OLC to the CIA Office of General Counsel. The legal opinion provides legal analysis and advice based on a set of facts provided by the CIA. The document is dated August 31, 2006 and bears the classification TOP SECRET//SCI.

The sequence in 2006 appears to be, barring missing documents (the Vaughn index includes roughly every other responsive document from the CIA’s OGC):

That looks to me as if Doc 70 is a final version of the draft Doc 65. Is that plausible? Or, in a Vaughn index, are different versions of the same document given numbering/lettering that makes the relationship clear?

Apologies if I missed someone else’s post about this: President Obama just said in the Oval Office today, while meeting with the King of Jordan, that the “lawyers” who devised the torture policies (incl. but not limited to OLC memos) MAY be prosecuted, if DOJ decides to do so. C-SPAN radio replayed Barack’s comments at just after 1 PM Eastern (90.1 FM in Wash. DC).

Someday I want to hear the right wing rationale for torturing any child and watch the cognitive dissonance on the faces of those truly evil people who were able to rationalize such a behavior. Who but the most depraved sociopath could come up with any scenario including the stupid, mythical, ticking time bomb, that would rationalize that kind of violence against an innocent child. No, you can’t have an abortion if you were raped, but you can kill an innocent child for the purpose of torturing his parent. We can use that child as an object to accomplish a strategic goal? Not in my name. EVER. Under any circumstance.

Yes, as others above say also: A lot of people knew…watched…tortured…some of those people are going to talk and cry to other people once they depart this job (military or contractor) and some are going to kill themselves…and some are going to keep on torturing and killing others where ever they are.
Bush/Cheney asked and encouraged people to act out sadist, unfounded vengeful fantasies to cameflauge the traitorous intentions and activities to reorganize the economy and culture of America and end the progress toward democracy.

Not being snippy, just showing that what to us at FDL seem like minor additional comments can become “big news” because of who said them and where they said them. Barack said this in the Oval Office, after days of back and forth and ambiguity in the press whether he was giving immunity to every war criminal who carried out the Bush/Cheney/Addington/Yoo/Bradbury/Bybee criminal conspiracy.

Whitehouse let the Cat out of the Bag last night on Rachel Maddow’s show, when he said that they’re waiting for Justice to release its torture report, which should be in a few weeks and will be a devastating opinion … Linky – via TPM

Petrocelli, thanks for that further tip. I just opened my TPM for the afternoon, didn’t see that at the top, given all the Jane Harman foofara (folderol?).

But there it is, under Barack’s picture! I didn’t have time to look at Rachel’s clip.

Since Sen. Whitehouse serves on Judiciary, he may be eager to use the OPR report for Sen. Leahy’s “commission,” but neither OPR nor the “commission” will be prosecuting anybody. Certainly, OPR can “refer” the DOJ defendants for prosecution, but the “commission” can only screw up criminal investigations. Which is why I hate Leahy’s idea.

We want all the war criminals to be prosecuted and go to jail, right? So we want all the White House and CIA lawyers who devised their inexcusable & disgusting programs to go to jail, in addition to the former DOJ lawyers who are now judge(s), law school professor(s) and out-of-work hacks. Naturally, once all the lawyers’ asses are on the line, they will quickly implicate Bush & Cheney & Gonzales.

Exactly … start by putting the Lawyers on trial and see where it leads. We know that many loops were created by BushCo to throw the Hounds off the trail but indicting the Lawyers first is the best place to start.

FWIW, I don’t think Whitehouse wants a Truth Commission and I think that Leahy’s pretty well done with that idea, which got a lukewarm response from all sides. We’re heading to a Special Prosecutor, indictments and hearings although they might be closed hearings.

IANAL … just a humble meditation teacher but I know enough of human nature to know that when Sheldon Whitehouse gets that look on his face, he’s pissed and there will be retribution … he just wants to cover all the angles so this will take time, as our fav. Judge, Vaughn Walker demonstrated.

Listening to Rahm this weekend, it seemed like the promise to prosecute if that’s where investigations led was falling by the wayside. But I guess not. The edge in my tone was really directed toward the statements of the WH COS.

I am having more of sense that the roll out has been scripted, but Rahm did say that policy makers would not be prosecuted. I don’t cotton much to this kind of misdirection if it were calculated. What the acknowledgment of the good faith reliance defense coupled with Obama’s appearance at CIA yesterday did do was send a message designed to alleviate the concerns of the rank and file. That aspect seems prudent to me. Whether those who operated outside the defense will be in jeopardy remains yet to be seen I take it. I really am not suggesting the Nuremberg defense should be allowed but the consequences of throwing the CIA in to utter disorganization and panic I think need to be weighed.

Cheney did seem to be awfully defensive (one might say “he protesteth too much”), and I couldn’t help but think of EW’s piece on the arguments concerning the effectiveness of torture in relation to national security. You know we won’t get to weigh memos by the pound like Cheney would prefer.

I have this lucky mantra for relieving stress … if a certain Superwoman of this site ever gets up to Toronto for a meet-up, I’ll happily impart it to all present ! As if my magic, stress disappears after chanting it !

Torturing children. Scientific studies of the density required in plywood to cause injury for the average cranium after x force applied to cause collision of said head with said plywood. Entomological studies, practicum. “Required” bathing of subject using board and water sports. Ted Nugent.
These are unbelievable things to defend. The CIA is upset that their work is going to be questioned? They fear recrimination for their activity. They acted upon orders that they confirmed were illegal within the CIA. 3 to 6 of their top leaders in the CIA have committed crimes for which they are under investigation, have been indicted, or have been convicted. How many resigned in protest among the people responsible? Not those that now wonder “why I didn’t turn them in”, or “I couldn’t speak up at the time”, “I will tell you all about it after the inauguration”.
Why would anyone give them immunity when they have done so many things in violation of the laws?

“For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it’s appropriate for them to be prosecuted,” Obama said.

“With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general within the parameters of various laws, and I don’t want to prejudge that,” he said. “I think that there are a host of very complicated issues involved there.”

Mention of “within the four corners” is exactly what Marcie & others have been emphasizing, given disclaimer footnotes in the OLC memos that the memos did not “represent the views of” the DOJ. IOW, evil assholes in the OLC tail do not wag the DOJ dog. Time for that dog to go huntin’

The administration has also not ruled out prosecuting anyone who exceeded the legal guidelines, and officials have discussed appointing a special prosecutor. One option might be giving the job to John H. Durham, a federal prosecutor who has spent 15 months investigating the C.I.A.’s destruction of videotapes of harsh interrogations.

I’ll leave that one for the legal insiders who hang out here. I don’t know enough about him to say anything. I was just struck that the Times now feels it’s time to start throwing out names for the job. I see that as a huge change in the playing field.

EW: (In fact, since the one prior known example of Executive Order pixie dust related to Iran-Contra, in the aftermath of which John Rizzo, then fairly early in his career in the Office of General Counsel at CIA, was deeply involved, the possibility that Bush’s EO on torture was just more pixie dust had to have been in the mind of lawyers at the CIA.) So it’s no surprise that CIA insisted on getting legal cover in addition to the apparent statement of policy represented by the EO.

I did not know that (passage bolded by me).

Just more evidence that prosecutions must be thorough and followed through to the end to prevent vampirism on the scale we’ve seen it.

Now that I am listening to Rachel Maddow’s clip in the background, I have to ask: how many Democratic Senators voted to confirm Bybee in March 2003? There are no excuses for the feckless votes by Democrats supporting the Bush regime, including confirming Mukasey.

It shouldn’t surprise you that the Democrats who are currently members of Evan Bayh’s anti-Obama bloc were delighted to skip across the aisle and vote for this murderous piece of human detritus, joining every single Republican. The Bayh Bloc’s hall of shame members from March 13, 2003: Evan Bayh (IN), Tom Carper (DE), Herb Kohl (WI), Mary Landrieu (LA), Blanche Lincoln (AR), both Nelsons (FL & NE), and Mark Pryor (AR).

A couple of other Democrats’ names who voted to confirm Bybee that I want to mention– for those who like keeping names in their memories: Max Baucus (MT), Tom Daschle (SD), Chris Dodd (CT), Pat Leahy (VT), Harry Reid (NV), Jay Rockefeller (WV) and Chuck Schumer (NY).

Before his colleagues voted to confirm this war criminal as a federal judge, Russ Feingold made a speech opposing Bybee’s elevation. He found Bybee’s unwillingness to answer questions disturbing enough to vote against the nomination.

In the Committee, Schumer and Kohl voted in favor and Leahy voted “present.”

I think it was Feingold but it could have been Leahy or Whitehouse who said, in a committee meeting about Dawn Johnsen’s delayed confirmation, that when Bybee was up for OLC confirmation, he was interviewed by precisely one senator, who asked him precisely nine questions — and that was it.

The CIA, not surprisingly, wanted continued cover for its role in interrogations. But their claim to have it, either through EO or OLC Memo, may have given them only questionable legal cover.

EW, I would say the key word is “questionable”. This IS the CIA. They knew.

Funny, I found myself thinking about the Comey hospital showdown in 2004 and the threat of a walkout by DOJ folks irt warrentless wiretapping. But I wonder, by that point, what Comey opposed beyond warrentless wiretapping? He knew a great deal about torture policy by that point and sided with Goldsmith on panning the earlier torture authorization memos. I’ve often wondered if the hospital showdown ever included “other” policy opposition issues. The Newsweek article, The Palace Revolt, sticks in my mind.

so glad we have Bybee in our sights. Could someone remind me which memo(s) Bybee wrote, or post a link to them? Weather is so gorgeous here in D.C. I can’t stand to do my day job, but it looks like I have some old homework I need to catch up on. I.e., the primer on torture-judge.

I have a long memory, and I remember what a shithead Judge Silberman was, and how dirty he was from Iran Contra. I couldn’t believe it at the time, but he skated off scot-free and continued to serve on D.C. Circuit for a long and very damaging career. No way we should let that happen with Bybee.

Did you read this about Cerberus restructuring debt? What is going on? This was also released this AM.

I had linked to it earlier this AM and mentioned Barney Frank on Charlie Rose stating Chrysler’s partnership and GM’s debt restructure would happen.

So what is going on? I do not think I would take an equity swap of 40%. I would take the government offer. The government offer does not have CDS’s standing in the middle of the equity swap. So, we have the government making a loan and the creditors figuring a way to still get theirs because the government came through?

I don’t think Cheney came off cocky but scared, and angry (and lying, as always) — a reaction to the outrage at the memos’ contents, not to the Villagey soothing sounds from forward-looking pols like Emanuel and Gibbs.

Oh, for sure! Mr. 19% approval rating reminds me a bit of the knight who gets his limbs cut off in Monty Python’s Holy Grail. “It’s just a flesh wound!!”

Lying is such second-nature to him that he can’t stop. What I have to hope will seep in is that people aren’t so scared of him anymore. But as Greg Sargent points out, most media have run with his “formal request to the CIA” b.s. as if it were gospel — Greg was the first and only to check with the agency and the first and only to confront Cheney’s flack with the question of how and when exactly the “formal request” was made.

Re the Bradbury 2007 memo, it will have to take into account developments re the MCA. It likely endorses techniques similar to Appendix M of the Army Field Manual. The pivot point legally will turn around the definition of “cruel treatment” in CA3 and “cruel, inhumane, and degrading treatment” in CAT.

This is why in the AFM they so clearly make the point Appendix M prisoners are not subject to the POW version of Geneva, because the latter defines cruel treatment as “great suffering”, a more stringent standard that CA3, whose definition via ICC statute uses the “intentional infliction of great suffering” standard. But note, the U.S. rejected ICC membership or the Rome Statutes, which also includes, “or serious injury to bodily integrity or health”, and “attacks on human dignity.” (ICC Art. 8(2)(i-ii)

But after MCA, cruel treatment is “In this section, the term “cruel, inhuman, or degrading treatment”:

means the cruel, unusual, and inhumane treatment or
punishment prohibited by the Fifth, Eighth, and Fourteenth
Amendments to the Constitution of the United States, as defined in
the United States Reservations, Declarations and Understandings to
the United Nations Convention Against Torture and Other Forms of
Cruel, Inhuman or Degrading Treatment or Punishment done at New
York, December 10, 1984. [see 42 USC Sec. 2000dd]

“Cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

That definition weakens the meaning of cruel treatment to the “shocks the conscience” standard under U.S. precedent (which has allowed all sorts of terrible treatment at domestic supermax prisons, for instance).

Obama’s EO of 1/09 restored the definition of “cruel treatment” to that of CA3. But without reference to ICC statute, the terminology is fuzzy, and I’m not sure on this, but refers back to CAT reservations, and hence to the 5th, 8th and 14th amendments. (Catch 22!)

Anyway, we’re sure to see that memo sooner or later. But the issues I mention here are currently key any way.

I don’t think you can hold the votes for Bybee that much against anyone bc this kind of info was not out then. As a matter of fact, Maddow was a little wrong last night about how Haynes just had worse timing. There was a period of time up front on his nomination that the torture info wasn’t out and the only thing then that kept Haynes off the bench was that he had some answers and failures to answer out to Leahy that made ex-prosecutor Leahy very suspicious and Leahy put a hold on Haynes. Haynes not being on the 4th is something that Pat Leahy should get direct thanks for initially. I hate to say it, but Graham probably gets some nod for helping keep him off the bench after the info did come out, since Republicans were still doing whatever they wanted back then and Dems were voting with them far more than against them. But Haynes – who came in with a recommendation from Comey and Goldsmith – lied unbelievably parsed to the Judiciary committee about the circulation of the working group and other memos and put a JAG in a very unpleasant situation of having to also testify and pretty much call his boss a fibber and it was all beyond the Ick factor. Even Graham rebelled finally.

But back to Bybee, what still strikes me as unbelievable is that all these things that Congress now knows or has it only knows or has as a result of actions by everyone and his brother – EXCEPT Congress. Congress was handed off the original torture memo that Ashcroft hemmed and hawed over. Congress is getting these memos as a result of ACLU pushes, not in response to Congressional subpoenas – it goes on and on, but what exactly is Congress doing?

Oh yeah – sending Karl Rove party invitations that he never seems to be able to make. How could I forget.

Much as I hate to give him any credit, former JAG Lindsey Graham was instrumental in blocking Haynes. Graham was happy to deny habeas rights, to lie to the Supreme Court about the legislative history on the DTA with Kyl, and more. But he’s big on the honorable rep of JAGs, and was royally pissed off at the way Haynes deceived Mora and the other services’ General Counsels in the “Working Group” charade.

I was going through some old articles yesterday and this reminded me of one. In it, Bradbury’s appeared before some congressional committee some time ago (seems to me it was in February 2008).
Anyways, there he was, trying to say that the way they were waterboarding wasn’t really all that bad and he snorted it wasn’t anything near as bad as what the Spanish Inquisition had done.
It was if he was saying we were doing a sort of, heh-heh-heh, waterboarding lite….

There is no doubt that the pot was stirred by Obama today. His statement today suggests to me that he’s trying to regulate emotions more than he is laying out any position or direction. And the firestorm that has ensued tells us why. They are going to hit back hard on this one.

75 – and one of the big problems after the MCA is that while they pay lip service to the fact that those things can be a “grave breach” of the Geneva Conventions, they specifically take away any rights of detainees or their surrogates to enforce the Geneva Conventions

So they add to the Uniform Code of Military Justice this:

SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN
CLAIMS.
(a) IN GENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

No civil proceedings for any kind of effort to try to halt violations or to try receive any redress or injunction.

The only recourse that would remain is basically a criminal proceeding undertaken by the AG’s office under the War Crimes Act – if the AG agrees to go forward and ALSO if the President doesn’t pull an Obama and say “don’t prosecute” and ALSO if the AG himself and DOJ were not complicit in the War Crimes, etc.

Then you run into this problem. Even if there were going to be a non-Holder AG who would go after War Crimes as a deterrent (since there’s no injunctive relief available to prevent ongoing abuse and mistreatment you have to do that dreaded ‘look back’ thing) and there’s the problem of the Presidential interpretations of where that “grave breach” line is found, and for anything else things are good to go.

SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.
(a) IMPLEMENTATION OF TREATY OBLIGATIONS.—
(1) IN GENERAL.—The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, as added by subsection (b) of this section, and in subsection (c) of this section, constitute violations of common Article 3 of the Geneva Conventions prohibited by United States law.
(2) PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict
not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.
(3) INTERPRETATION BY THE PRESIDENT.—
(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations
which are not grave breaches of the Geneva Conventions.
(B) The President shall issue interpretations described by subparagraph(A) by Executive Order published in the Federal Register.
(C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.
(D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.

So they create a system where they say anything prohibted in 18 USC 2441 could be (if an AG would prosecute) a War Crime. That statute

doesn’t list specific things (it does to some extent, but not specific things like hooding, stripping, simulated sodomy, etc. vs specific things like murder and rape) as much as it goes back to the same kinds of words and defined terms like “torture” and “cruel or inhuman treatment” that OLC has already weighed in on (and now, realize, we are talking about ALL DETAINEES – EVERYWHERE – not just “high value” detainees in black sites). They go back to 2340 (which OLC has already opined on) and say – oh yeah, here’s one thing we’re going to change. It’s going to be “serious” mental pain and suffering instead of “severe” mental pain and suffering and the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm”

That’s likely to be a focus of the memo – what things are still ok bc they only provoke non-serious mental harm.

They also leave out of the listing of Article 3 “grave breaches” the one that is self-referenced in the GCs – which is the transport of protected persons out of country. Which looks like a pretty clear effort to make it “not” a grave breach to do something that the GC’s themselves pretty much call a grave breach – the transport out of country of protected persons. Not that knowledge of hundreds or more of violations would have had much to do with it – and even so, those persons so violated, even if they got past the fact that we have redefined to prevent this from being a war crime, would have to rely on an AG to bring suit on their behalf.

Then you have the overlay Congress saying – oh, and in addition to the President’s OLC “defining” all those war crimes in 2441 by their secret definitional standard of what they think torture and other terms mean and by what they think 2340, in secret, means – we also think that we need to be sure and let everyone know that it’s the President who interprets the GCs.

So all that stuff the SUp Ct relied on, about the GCs being incorporated into the UCMJ and therefore courts getting to decide mean – well, we are going with a do-over. Only the President can interpret that – other than what we’ve done in 2441, which is completely reliant on the President deciding to have his AG pursue.

87 – That helps clarify. I had looked for the “grave breaches” language, but hadn’t time to find, so much thanks for reproducing it here.

I have a question.

If MCA lets the president be the arbiter of what constitutes a non-grave breach, and lets “grave breaches” fall back on 2340, as you say, with its reliance on vague definitions, weren’t any opinions regarding the latter opined in the OLC memos now null and void by Obama’s executive order?

Also if the president “has the authority for the United States to interpret the meaning and application of the Geneva Conventions” and MCA establishes a procedure for the president to issue such interpretations by executive order, has Obama issued such a relevant EO, or are we still relying on Bush’s. Obama’s EO, “ENSURING LAWFUL INTERROGATIONS”, doesn’t appear to fit that bill, or am I, a non-lawyer, missing something here?

FYI, I found this by Jack Balkin on MCA and Geneva, I think making the point you just did:

… the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva’s status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Whatever happened to the movement (and I use the word with some “reservations”) to repeal MCA? Wasn’t Dodd pushing such a repeal?

With the Democrats supposedly “in power”, this terrible law should be struck down. I can see that in my own polemics on the subject, I’ll have to start making that a key component of the anti-torture fight.

Yep, some cases involving such weighty issues with huge impact are getting too hard to prosecute, but things some poor ‘Murcans do while trying to survive (e.g., writing a bad check to keep the electricity on, shoplifting at the grocery store because the children are hungry, etc.) continue to be prosecuted day in and day out.

89 – with that story, I’m going back to my comments in the “Jane Harman’s OverReaction” thread. The interesting part to me had been how they ended up with her whole conversation when you would have thought that there would have been some minimization in place that would have culled out a non-target US Congresswoman, head of Intel committee, conversations.

That seems to have been a touchy point after Stein’s original story and Q & A because in the NYT’s piece this morning, they had THREE aligned sources all sputtering over how it had been “inadvertent” that the NSA had picked up the info. That’s where the dogpile formed, over making sure that it went to record with multiple sources that the interception had been “inadvertent.”

But if so and if no case was started against her, then you have to wonder, again going back to minimization standards or FISCt orders, wouldn’t that intercept have had to be destroyed at some point if there was no investigation? So I thought that the NYT sounded like she was ready to start playing chicken with DOJ and this link sounds like she’s definitely going there.

On Rosen and Weissman, I guess when one of your defendants still has so much pull he can make the President duck for cover and give up on Chas Freeman, yeah – might be tough.

Harman doesn’t sound all that worried about how it is all going to play to her constituents, does she?

91 – I don’t have access to a lot of research tools other than “teh google” but I am not aware of Obama issuing any such EO, although I’m not sure if he has left Bush’s in place either – I just don’t know.

Balkin is making a very similar point to the one I made. I take it a bit further too, in that Balkin didn’t have the OLC memos then and now that we do, we know what they say about the cross references statutes like 2340 and it is pretty shocking. Obama has perhaps “withdrawn” them, but he has also said that they are reflective of policy issues – not that they were attempts to sanitize clear crimes. That is now pervasive – I’ve mentioned the Chicago police torture case in particular, but it really is at issue now in a lot of ways. Does Burge get the benefit of OLC’s definition of torture? If not, isn’t it selective prosecution to go after him but not other torturers who are going to get that benefit?

Did the countries granting us SOFAs with respect to our many bases, where they only defer jurisdiction based on our affirmative undertaking to apply US law, understand the nature of the rights to interrogate we are giving ourselves vis a vis their citizens and the non-recourse?

It’s all such a mess and those are all the kinds of tangles no one is willing to jerk the comb through. A rats nest that everyone tries to put behind them.